John Thomas Still v. Commissary Operations, Inc. M2003-00528-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Ross H. Hicks, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court determined that I(1) Employee was entitled to the current cause of action pursuant to Tennessee Code Annotated Section 5-6-241(a)(2). The employee sustained no additional vocational disability over and above the previously awarded twenty-five percent. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOHN K. BYERS, SR. J., joined. Aubrey T. Givens, Madison, Tennessee, for appellant, John Thomas Still Mark A. Baugh, Nashville, Tennessee, for appellee, Commissary Operations, Inc. MEMORANDUM OPINION FACTS On March 13, 1998, the plaintiff injured his back at work. At trial, the parties stipulated that the plaintiff's injury was work-related, that it occurred during the course and scope of his employment, and that proper notice was given. The incident was compensable at a rate of $492. Thus, the only issue at trial was the extent of permanent vocational disability and whether the award should be paid in a lump sum. At the conclusion of proof, the trial court found that the plaintiff had sustained a twenty-five percent vocational disability to the body which equated to two and a half times the bodily impairment. The trial court further ruled that the plaintiff's rights pursuant to Tennessee Code Annotated Section 5-6-241(2)(b) were not impaired. Subsequent to the original case, the plaintiff returned to his employment with Commissary Operations, Inc. However, in July 22, he was terminated. The plaintiff then filed a new cause of action pursuant to Tennessee Code Annotated Section 5-6-(a)(2) in an attempt to increase his previously adjudicated award of twenty-five percent vocational disability. In the second case, the trial court determined that reconsideration of the previous award was required under the facts and circumstances of the plaintiff's loss of employment with Commissary Operations, Inc. However, it did not award the plaintiff any additional vocational disability The following facts were adduced at the second trial. After his March 1998 injury, the plaintiff was ultimately released to return to work at Commissary Operations, Inc. Dr. Cushman, the plaintiff's treating physician, assigned the plaintiff a ten percent permanent impairment to the body as a whole. Dr. Cushman told the plaintiff that he should use "common sense" and temporarily refrain from lifting heavy objects. Dr. Cushman did not give the plaintiff any permanent restrictions. He testified that he instructed the plaintiff that if he had any problems to return to see him. Dr. Cushman stated that he did not treat the plaintiff again. The plaintiff returned to work in October 1998, and he continued there until July 22. The plaintiff testified regarding problems that he suffered when he returned to work after his back injury. He stated that many of his tasks caused him pain. He also stated that he could not sit for more than three hours in the same position. The plaintiff acknowledged that he did not complain to his supervisors about the alleged pain he suffered. He maintained that it was because he was afraid he might lose his job. The plaintiff's wife also testified regarding the plaintiff's pain and decreased activity. On September 6, 21, the plaintiff underwent a physical for the Department of Transportation. The physical was performed at Concentra Medical Center. As part of the examination, the plaintiff filled out a form indicating that he had had a prior back and spinal injury. However, he also stated in the forms that he was not having any problems from his 1998 injury and that he did not have any restrictions with job activities. The plaintiff tried to explain that he filled out the forms as he did because on "that date it wasn't hurting." Following the physical, the plaintiff was re-certified to continue driving. In October 21, while planting flowers, the plaintiff injured himself at his home. Three to four weeks after the accident, the plaintiff went to see his own physician, Dr. Peach. On February 19, 22, Dr. McCarty, an orthopedic specialist to whom Dr. Peach had referred the plaintiff, performed surgery on the plaintiff's shoulder. On March 7, 22, the plaintiff filled out a form requesting Family or Medical Leave. The form stated that the plaintiff was entitled to twelve weeks of unpaid leave. However, the plaintiff contends that he was approved for six months leave. The plaintiff was already on leave when he completed the form. -2-
Robertson
Workers Compensation Panel
Kimberly Clark v. Hardee's Food Systems, Inc., M2002-02942-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr.J.
Trial Court Judge: Tom E. Gray, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant, employee, has appealed the trial court's decision in this case, holding the employee had failed to carry the burden of proof as to causation, and denied benefits. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR.J., in which ADOLPHO A. BIRCH, JR., J. and JOHN K. BYERS, SR.J., joined. D. Andrew Saulters, Nashville, Tennessee for appellant, Kimberly Clark Vanessa L. Comerford, Brentwood, Tennessee for appellee, Hardee's Food Systems, Inc., et al. MEMORANDUM OPINION ISSUES The issues in this appeal as stated by the employee and employer are whether or not the trial court erred in ruling the employee failed to carry the burden of proof as to medical causation due to inconsistencies in her trial testimony and history given medical professionals. Employee alleges in this appeal that the inconsistencies in her testimony as well as her history given to medical professionals were caused by confusion on her part, or that the alleged inconsistencies were misinterpretations. -2-
A Sullivan County Criminal Court jury convicted the defendant, Gary Allen Larkins, Jr., of attempted aggravated assault, a Class D felony; resisting arrest, a Class B misdemeanor; and disorderly conduct, a Class C misdemeanor, and the trial court sentenced him to concurrent sentences of seven years, six months, and thirty days, respectively. The defendant appeals, claiming that the evidence is insufficient to support his convictions. We affirm the defendant’s convictions but remand the case for entry of a corrected judgment for the attempted aggravated assault.
The defendant, James Lusk, Jr., appeals from his twenty-five-year sentence imposed by the Hamilton County Criminal Court following his guilty plea to attempted first degree murder, a Class A felony. The defendant claims that the trial court failed to apply and weigh mitigating factors properly. We affirm the judgment of the trial court.
The state in this interlocutory appeal challenges the McMinn County trial court’s order granting the defendant’s motion to suppress evidence seized pursuant to a search warrant. In suppressing the evidence, the trial court found the informant’s information in the affidavit referred to a different property location than the property authorized to be searched; therefore, the trial court found a lack of probable cause for the issuance of the search warrant. Upon review of the record and the applicable law, we affirm the trial court’s order granting the motion to suppress.
We granted permission to appeal in this case to determine whether the Court of Appeals erred in holding that the complaint failed to state a claim for intentional infliction of emotional distress. We also consider Defendants' contention that the Court of Appeals erred in holding that Plaintiffs' cause of action was not time-barred because the discovery rule applies to this case. We hold that Plaintiffs' complaint is sufficient to state a claim for intentional infliction of emotional distress. The complaint alleges all the elements of the cause of action. We also hold that the discovery rule tolled the statute of limitations in this case. Plaintiffs could not have been expected to know, in the exercise of reasonable diligence, that Defendants' alleged statements were false, and therefore could not have been expected to know that an injury had occurred because of the false statements. Accordingly, the holding of the Court of Appeals is affirmed in part and reversed in part, and this case is remanded to the trial court.
In this workers’ compensation appeal, we must determine whether an employer is liable to a health insurer who paid necessary and reasonable medical expenses incurred by an employee but did not intervene in the workers’ compensation claim to protect its interest. Although the trial court found that the treatment was necessary and reasonable, it further found that the employer was not liable for the medical expenses paid by the employee’s health insurer because the insurer failed to intervene and prove its interest. The employee appealed to the Special Workers’ Compensation AppealsPanel, which transferred the case for full Court review without a recommendation. After reviewing the record and applicable authority, we have determined that the employer is liable to the employee’s health insurer for all reasonable and necessary medical expenses and that the health insurer is not required to intervene in the workers’ compensation suit. Because the record does not fully develop the nature and extent of the expenses paid by the health insurer, we remand to the trial court for that purpose and further action consistent with this opinion.
Shelby
Supreme Court
Nps Energy Services, Inc., Appellant v. Nelson E. Moore, Appellee M2002-02718-WC-R3-CV
Authoring Judge: Frank G. Clement, Jr., Sp. J
Trial Court Judge: Hon. C.L. Rogers, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer/appellant contends: (1) that the trial court erred in determining that the employee suffered an injury arising out of and in the course of his employment, and (2) that the trial court erred in awarding forty percent (4%) permanent partial disability to the body as a whole. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed. Frank G. Clement, Jr., Sp. J., delivered the opinion, in which Frank F. Drowota III, C.J., and Joe C. Loser, Jr., Sp. J., joined. Raymond S. Leathers, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant NPS Energy Services, Inc. George E. Copple, Jr., Nashville, Tennessee, for the appellee Nelson E. Moore. Memorandum Opinion Nelson E. Moore (Moore), appellee, is a journeyman painter who was employed by NPS Energy Services, Inc. (NPS), appellant, from September 1998 to December 1998. Moore was hired by NPS to abate lead from the Cumberland City Generating Plant of the Tennessee Valley Authority, a customer of NPS. On November 4, 1998, while working in the basement of the Cumberland City facility, Moore claims to have suffered a compensable injury as a result of exposure to airborne cleaning acids and caustic materials. NPS denies the assertion that Moore was exposed to or injured 1 by acids or caustic materials while employed by NPS. NPS filed the complaint for declaratory judgment and Moore filed a counterclaim. The matter was tried on October 2, 22. The trial court entered its final order the following day finding that Moore was exposed to chemicals while employed by NPS that caused occupationally induced asthma and awarded Moore forty percent (4%) permanent partial disability to the body as a whole. NPS filed this appeal. Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6- 225(e)(2). We are not bound by the trial court's findings but, instead, conduct an independent examination of the record to determine where the preponderance of evidence lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Nevertheless, considerable deference must be accorded to the trial court's factual findings on issues related to the credibility of witnesses and weight to be given their testimony. Krick v. City of Lawrenceburg, 945 S.W.2d 79, 712 (Tenn. 1997). Conclusions of law, however, are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). On November 4, 1998, Moore was working in the basement area of the Cumberland Furnace facility. This area is very large, approximately 5 feet wide, 3 feet deep and 2 feet high. The unit Moore was working on was shut down for 8 days for scheduled maintenance. Moore was wearing regular painting work clothes. Needing a "scissor lift" to perform his duties, Moore went to an area of the basement near what is referred to as the minor maintenance room. He found two scissor lifts, but both were missing an electrical box that was necessary to operate the lift. Moore searched in the maintenance room, and then, he went up to the next floor. Still unsuccessful in his search for an electrical box, Moore returned to the basement in an area near the minor maintenance room at which time Moore claims his nose started running, his eyes started burning and began to water, and his throat became sore. He also alleges that his face felt like it had needles in it. Seeing a sign that read "Warning, Acid" , Moore went to a nearby bathroom and washed his eyes and face with water. Moore claims that he felt these sensations for 3 to 6 seconds. The pricks and tingling sensations stopped, and other sensations generally subsided as well. Prior to January 1998, the Cumberland City facilityhad been using sulphuric acid and sodium hydroxide, identified as "caustic", to remove impurities from resin beds in the water purification system. In the area where Moore claims to have been injured, there were signs which read: "Danger: Caustic Lines", "Danger: Acid Line", "Danger: Acid Caustic Outlet", and "Danger: Acid and Caustic." Other signs indicated the lines were pressurized, but the evidence suggested that the lines had not been under pressure for months. At the time of the incident, the facility was no longer using acid or caustic for purification, however, the chemicals remained in tanks and pipes in the area at issue. NPS insists that Moore did not suffer an injury arising out of his employment and during the course of his employment. Specifically, NPS contends there was no evidence of a chemical leak on November 4, 1998. Moreover, NPS contends that even if Moore were exposed, the chemicals were 2
Moore
Workers Compensation Panel
Dinah Faye Coffman v. Dtr Tennessee, Inc. E2003-00641-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Hon. Ben K. Wexler, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 66 2/3 percent permanent partial disability. The employer insists the evidence preponderates against the award. Judgment of the trial court is modified to indicate the award is to each arm and the judgment as modified is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Modified and Affirmed. ROGER E. THAYER, SP. J., in which E. RILEY ANDERSON, J., and JOHN K. BYERS, SR. J., joined. Clarence Risin, of Knoxville, Tennessee, for Appellant, DTR Tennessee, Inc. James M. Davis, of Morristown, Tennessee, for Appellee, Dinah Faye Coffman. MEMORANDUM OPINION The employer, DTR Tennessee, Inc., has appealed from the entry of a judgment awarding the employee, Dinah Faye Coffman, 66 2/3 percent permanent disability. Facts The employee was thirty-seven years of age and dropped out of school when she was in the ninth grade. She later obtained a G.E.D. certificate. Most of her prior work experience was in general labor work. She has been a smoker for many years. She was working for DTR Tennessee on an assembly line where she operated several machines. The work involved repetitive use of her hand and arms. During January 1999, her hands were bothering her to such extent she notified company officials who referred her to a doctor. The doctor referred her to an orthopedic surgeon, Dr. Gorman, for treatment. She eventually became dissatisfied with him and decided to find another orthopedic doctor. She chose Dr. Minkin and he diagnosed her condition as bilateral carpal tunnel syndrome. He operated on her right arm during April 2. Shortly after this surgery, she had a tonsillectomy and a biopsy indicated she had throat cancer. She was treated with chemotherapy and radiation. After having about nine surgical procedures for the cancer, it was determined she was cancer free and she returned to Dr. Minkin who performed surgery on her left arm during January 22. Ms. Coffman testified the surgery on her arms had improved her condition to some extent but she still had problems using them. She found it difficult to hold objects and often dropped them. She said it was hard to put her makeup on or comb her hair; that she still had some numbness and tingling; she could not do general housework; and she could not work at any of the jobs she had held in the past. She indicated she was drawing Social Security Disability benefits for her total condition and at one point during her examination, she said that her not being able to work was partly due to her cancer. Dr. Paul W. Gorman, an orthopedic hand surgeon, testified by deposition and said he began treating her during June 1999. He said she had weakness in grip strength in both hands and the muscles were tender to touch. His diagnosis was: (1) chronic tobaccoism, (2) mild degree of carpal tunnel syndrome on the right, and (3) some mild degree of cubital tunnel syndrome, which is tenderness over the ulnar nerve at the elbow. The doctor was of the opinion that her smoking was contributing to her symptoms; that her problems had eventually resolved and that she had no permanent disability. Dr. Bruce I. Minkin, an orthopedic hand surgeon, also testified by deposition. When he first saw her during November 1999, he diagnosed her as having bilateral carpal tunnel syndrome and performed the release procedures on each arm. The second procedure was much later because of her treatment for throat cancer. He found medical impairment to be 7 percent to the left arm and 3 percent to the right arm. He also recommended she stop smoking but did not attribute the smoking as a cause or contributing cause of her carpal tunnel problem. Dr. William J. Gutch, a retired orthopedic surgeon, testified by deposition. He did not treat her but saw her only for an independent medical examination during July 21, which was after the first arm surgery and before the last arm surgery. His diagnosis was bilateral carpal tunnel syndrome and he felt she had a 17 percent impairment to the whole body or a 9 percent impairment to each arm. Dr. Gutch did not see any connection between her smoking habit and the injury to her arms. Standard of Review Our review of the case is de novo accompanied by a presumption that the findings of the trial -2-
Knox
Workers Compensation Panel
Mary Lee Dotson v. William Ennis Dotson M2002-02578-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton
This appeal involves the dissolution of a 28-year marriage by default. The wife filed for divorce in the Chancery Court for Maury County and, after the husband failed to file a timely answer, filed for a default judgment. The trial court granted the default judgment even though the husband had filed an answer and counterclaim on the day before the hearing and later denied the husband's Tenn. R. Civ. P. 55.02 motion to set aside the default. The husband has appealed. We have determined that the trial court properly granted the default judgment but erred by refusing to later set the default judgment aside.
Defendant, Derrick L. Dillard, argues in this appeal that the trial court erred by imposing an illegal sentence following a hearing in which the trial court found that Defendant had violated the terms and conditions of his Community Corrections sentence. The State agrees that the trial court erred. After a full review of the record, we reverse the judgment of the trial court and remand for entry of an order consistent with this opinion.
This appeal is the continuation of a protracted dispute between Tennessee State University and a faculty member stemming from his termination for sexually harassing a student. After the courts vacated the dismissal, the university and the Tennessee Board of Regents established a process of transitional reinstatement. The professor objected and refused to report to work. Thereafter, the professor filed a petition in the Chancery Court for Davdison County to hold the university and the board in contempt. The trial court heard the matter without a jury and declined to hold either the university or the board in contempt. The professor has appealed. We affirm because orders declining to grant contempt petitions are not appealable.
The Trial Court ordered the father to pay one-half of the daughter's college expenses pursuant to the parties' Marital Dissolution Agreement, and reimburse the mother for one-half of expenses already paid. On appeal, we affirm.
This case is an appeal from a wrongful death claim in which the Defendant was found only fifty percent at fault. The Plaintiffs appeal to this Court for review of two procedural issues. For the following reasons, we affirm the trial court.
Hickman
Court of Appeals
In Re S.M. M2003-00422-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Betty Adams Green
This appeal involves the termination of the parental rights of a biological father whose daughter was surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the biological father that it had custody of the child, the agency filed a petition in the Davidson County Juvenile Court seeking to terminate the father’s parental rights. Following a bench trial, the juvenile court concluded that the biological father had abandoned his daughter and that the child’s best interests required terminating her biological father’s parental rights. We have determined that the agency has failed to present clear and convincing evidence that the biological father has abandoned his daughter.
Davidson
Court of Appeals
In Re S.M. - Concurring M2003-00422-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Greene
I disagree with the standard of review employed by the court in this case for the reasons discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed; Estate of Acuff v. O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). However, I would reach the same result employing the standard of review recited in Acuff v. O’Linger, 56 S.W.3d 527 at 537. Therefore, I concur with the court’s decision to reverse the order terminating R.G.L.’s parental rights.
The defendant, Gregory Skinner, was convicted of two counts of sale of a Schedule II controlled substance, a Class C felony, and one count of sale of a counterfeit controlled substance, a Class E felony, and sentenced as a Range II, multiple offender to ten years for each of the two counts of sale of a Schedule II controlled substance, to be served concurrently, and to three years for the sale of a counterfeit controlled substance, to be served consecutively, for a total sentence of thirteen years. This sentence was ordered to be served consecutively to a previous sentence. The defendant appeals, arguing that the evidence was insufficient to support his convictions and that the trial court erred in applying a nonstatutory factor in setting his sentence. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments in Counts 2 and 3.
The petitioner, Harry David Johnson, was convicted in the Sullivan County Criminal Court of the first degree murder of his wife, Katherine Trotter Johnson, and he received a sentence of life imprisonment. Subsequently, the petitioner filed for post-conviction relief, alleging that he did not receive effective assistance of counsel during his trial. The post-conviction court held an evidentiary hearing, ultimately determining that the petitioner had failed to prove by clear and convincing evidence that trial counsel was ineffective. The petitioner timely appealed this ruling. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for a new trial.
Sullivan
Court of Criminal Appeals
Debra A. Pressley v. State of Tennessee E2003-01133-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Vance W. Cheek, Jr., Commissioner
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Claims Commissioner dismissed the complaint finding that the employee's mental condition was of long duration and was the result of a gradual build-up of work stress. The judgment of the Claims Commission is reversed and the case is remanded. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Tennessee Claims Commission is Reversed and Remanded ROGER E. THAYER, SP. J., in which E. RILEY ANDERSON, J., and JOHN K. BYERS, SR. J., joined. J. Anthony Farmer and John P. Dreiser, of Knoxville, Tennessee, for Appellant, Debra A. Pressley. Paul G. Summers, Attorney General and Reporter, and George H. Coffin, Jr., Senior Counsel for Appellee, State of Tennessee. MEMORANDUM OPINION The employee, Debra A. Pressley, appeals from the trial court's action in dismissing her complaint and entering judgment in favor of the employer, State of Tennessee. The Claims commissioner held the employee's mental condition was of long duration and the result of a gradual build-up of work stress and therefore not compensable. Facts Ms. Pressley, a 1976 high school graduate with an Associate's degree in business and word processing, began working for the Tennessee Department of Safety in 1989 as a drivers license examiner. She worked in this position for about two years and then transferred to working as a weigh station operator where she remained for about one year. In 1992 she began regular duties as a State Trooper and was assigned to work in Knox County. She testified that prior to working as a State Trooper, she had never been seen or treated for any psychological problems. She said her regular duties as a patrol officer required her to investigate many accidents with fatalities but that never really bothered her. Ms. Pressley told the court of three specific events that occurred during the last two years of her work that she said caused her to become very depressed, have flashbacks and suffer awful nightmares to the extent she was hospitalized on several occasions and rendered unable to work. In late 1997 or early 1998, she was required to assist another officer in investigating a single vehicle accident on Interstate 4 which involved a motorcycle where the driver was decapitated when he came into contact with a guardrail. She had to search the wreck scene in order to locate the driver's head. The second event was an accident in 1999 on the John Sevier Highway involving a young woman who was killed when another vehicle impacted her car so severely there was difficulty in removing her body from the wreckage and where she described an enormous amount of blood in the wreckage. She had to notify the family and also prevent the family from seeing the body and blood. The last event and the one that she said seemed to cause her the most trouble was in 2 and was an accident where a vehicle actually rolled on top of the driver's head and the head was crushed and "elongated and buried in mud." She said the individual who died was known to her family. Ms. Pressley said these events caused her to become very depressed; that she quit doing everything; could not sleep or eat very much; caused her to have flashbacks and nightmares when she would dream about being at work and called to another tragic accident scene. She indicated that sometimes a certain smell would remind her of a grisly mixture of corpse, battery acid and transmission fluid all mixed together as the smell of death. In describing this, she told the court she could smell it while talking about it. She eventually had to stop working and was seen by a licensed clinical psychologist upon referral by the Department of Safety. She said she was so distraught that she attempted suicide four times during the period she was not working. The first time she was hospitalized was in April 2 after cutting herself with a knife. She has been in the hospital on several other occasions since then. She testified she is unable to work; cannot hardly stand to leave her house; has panic attacks; and she hyperventilates often. She stated she had worked as a State Trooper for almost ten years and had never had problems of this nature prior to the three events she described. She admitted she was having some problems in her marriage during this same period of time but attributed some of that as a result of her unusual and stressful condition. She was awarded disability retirement benefits with the State and is now receiving Social Security Disability benefits. Dr. Francis P. LeBuffe, a psychiatrist, testified by deposition. He was Ms. Pressley's treating doctor and he saw her for the first time in the hospital on April 4, 2. He testified she had all of the symptoms of severe depression; that she was not able to work and his diagnosis was (1) major -2-
Knox
Workers Compensation Panel
Dexter Jones v. State of Tennessee M2003-01229-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John D. Wootten, Jr.
The petitioner, Dexter P. Jones, appeals from the Wilson County Criminal Court's denial of post-conviction relief from his four convictions for assault, a Class A misdemeanor, and resulting consecutive eleven-month, twenty-nine-day sentences. He contends that his guilty pleas were not knowingly, voluntarily, and intelligently made because the trial court did not advise him that he was waiving a double jeopardy claim. We affirm the trial court's denial of the petition.
Wilson
Court of Criminal Appeals
State of Tennessee v. Glen Holt E2003-01100-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Eugene Eblen
A Morgan County jury found the Defendant, Glen Holt, guilty of first degree felony murder and aggravated robbery. The trial court sentenced the Defendant to nine years in prison for the aggravated robbery charge, to be served concurrently with a life sentence for the murder conviction. The Defendant appeals, contending: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred when it allowed a photograph, offered by the prosecution, to be admitted into evidence without a proper foundation; (3) that the jury did not follow the trial court’s instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and intelligently waive his constitutional right to testify in his own defense. Although we conclude that issues (1), (2) and (3) are without merit, the record is insufficient for us to determine whether the Defendant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the Defendant’s right to testify was violated, and if so, whether the violation of the Defendant’s right to testify was harmless beyond a reasonable doubt.
I concur in most of the conclusions and reasoning in the majority opinion, but I dissent from the remand in this case. I believe that the record sufficiently shows that the defendant made a knowing and intelligent waiver of his right to testify. The failure to follow the specific Momon requirements should not disturb the judgment in this case. Counsel told the trial court, in open court with the defendant present, that he had advised the defendant of his rights to testify and not to testify and that he thought the defendant understood those rights. When the record states that the “Defendant indicates affirmatively” in response to the trial court’s asking him if he understood his rights and was not going to testify, I have no problem in concluding that the defendant intentionally relinquished his right to testify. Moreover, given the fact that counsel at the motion for new trial hearing indicated that the defendant had consulted with him and had made a decision not to testify further justifies my conclusion. To require a Momon hearing under the circumstances in this case would be putting form above substance. I would affirm the trial court.
The appellant, Dwight Miller, was convicted of first degree murder and sentenced to life in prison in 1996. On December 29, 1998, this Court reversed the judgment of the trial court and remanded the case to the Haywood County Circuit Court for a new trial. See State v. Dwight Miller, No. 02C01-9708-CC-00300, 1998 WL 902592 (Tenn. Crim. App. at Jackson, Dec. 29, 1998). At the conclusion of the second trial, appellant was convicted again by a jury of first degree murder and sentenced to life in prison. The issues presented for our review include: (1) whether the trial court erred in permitting the prior recorded testimony of a witness to be read into the record; (2) whether the trial court erred in failing to grant a mistrial after a bomb threat occurred during the course of the trial; and (3) whether the evidence is sufficient to sustain the conviction for first degree murder. Appellate review is available for the sufficiency of the evidence despite the appellant's failure to file a timely motion for new trial under Tennessee Rule of Criminal Procedure 33(b). The review of the issues, however, is also dependent upon either a timely filed notice of appeal, or in the interest of justice, a waiver of the timely filing of a notice of appeal pursuant to Tennessee Rule of Appellate Procedure 4(a). Because the appellant filed an untimely motion for a new trial, his notice of appeal is likewise tardy. Additionally, the appellant has not sought a waiver of the timely filing of the notice of appeal. Under these circumstances we conclude that the appellant has waived review of these issues on appeal. Nevertheless, we have in the interest of justice, reviewed the primary issue of the sufficiency of the evidence. The evidence is more than sufficient to support the verdict of the jury. Accordingly, the judgment of the trial court is affirmed.
Haywood
Court of Criminal Appeals
State of Tennessee v. Holly Fant W2003-00211-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Clayburn L. Peeples
The appellant, Holly Fant,1 pled guilty to aggravated assault by use of a deadly weapon resulting in bodily injury and agreed to have her sentence determined at a sentencing hearing. The trial court sentenced the appellant as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. After an appeal, this Court reversed and remanded the case for a new sentencing hearing. See State v. Holly Fant, No. W2001-02634-CCA-R3-CD, 2002 WL 1284229 (Tenn. Crim. App. at Jackson, June 5, 2002). After a new sentencing hearing, the appellant was again sentenced by the trial court as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. In this appeal, the appellant challenges her sentence by arguing that the trial court: (1) improperly applied certain enhancement factors to her sentence; (2) based its determination on evidence not in the record; and (3) improperly denied her request for a “special needs” Community Corrections sentence. After a complete review of the record, we affirm the judgment of the trial court.
I agree that the defendant’s sentence should be affirmed. In my view, however, it was error for the trial court to apply enhancement factor (6), that the defendant treated the victim with exceptional cruelty. See Tenn. Code Ann. § 40-35-114(6). Application of this factor requires a finding of cruelty over and above that inherently attendant to the crime for which the defendant is convicted. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). In other words, such evidence must “denote[ ] the infliction of pain or suffering for its own sake or from the gratification derived therefrom, and not merely pain or suffering inflicted as the means of accomplishing the crime charged.” State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 14, 2000). Enhancement factor (6) has typically been applied insituations where the victim was tortured or abused. See State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). This court has upheld the application of this factor based on proof of extensive physical abuse or torture, see State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995), as well as proof of psychological abuse or torture, see State v. Thomas Lebron Mills and Carl Franklin Mills, No. 936 (Tenn. Crim. App., at Knoxville, Dec. 19, 1985) (holding that acts of mental cruelty, by themselves, can be as vicious and scarring as acts of physical cruelty). Here, there is no evidence that the defendant tortured or abused the victim or that she inflicted pain and suffering greater than that necessary to complete the offense. Rather, after shooting the victim, the defendant dialed 911 and waited with him until emergency assistance arrived. Nevertheless, I concur with the majority that the four-year sentence, one year above the minimum, was warranted.
